An Introduction To Immigration Detention

US Immigration Detention and Alternatives: An Overview

Why are Noncitizens in Immigration Detention?

Those without US citizenship, even green card holders, may be deported from the US under certain circumstances. In most cases, deportation requires a judge’s order. Deportation hearings take place in immigration courts, where immigrants do not have the same protections afforded to criminal defendants. A lawyer is not provided by the government, even if a person is unable to understand or participate in legal proceedings, and impartial determinations of mental capacity are unavailable.

Immigration detention was formerly used only for those with the most serious criminal convictions or those who posed national security concerns. However, strict immigration laws passed in 1996 drastically expanded the list of crimes that warrant detention, and also implemented mandatory detention for most people caught arriving in the US without valid permission to enter. Any noncitizen accused of being deportable or under a deportation order may be held in a prison, jail, or jail-like detention center until the case is decided.

As a result, immigration detainees are today the fastest growing segment of the incarcerated population in the US.

Detention of Asylum Seekers in the US

Asylum seekers very often flee their homes in acute danger and try to avoid official detection until they reach a country where they hope to find refuge. Because many asylum seekers escape from their countries hastily, many arrive in the US with without adequate identification and are therefore particularly likely to find themselves subject to mandatory immigration detention while awaiting resolution of their cases.

Detention is severely damaging to the health and well-being of Asylum Seekers

United Nations treaties and international laws strongly advise against detaining asylum seekers because detention damages the physical and mental well being of asylees who may have experienced severe persecution or torture. The US government’s plan for health care of detainees has historically focused on “mak[ing] sure [detainees] are medically able to travel and medically able to return to their country,”[1] [1] as opposed to maintaining or improving health.

In a landmark 2003 survey by PHR and the Bellevue/NYU Program for Survivors of Torture, many respondents reported that they had significant difficulty in accessing care while in detention, and nearly half reported that their physical health had declined while in detention. The survey also found that 90% percent of asylum seekers in detention suffered one or more of the conditions of anxiety, depression, and PTSD, and more than 90% of these individuals reported that detention had substantially contributed to worsening their mental health. There is significant variation between different detention facilities, and a lack of comprehensive oversight. Although conditions in some detention facilities have improved since 2003, poor conditions and human rights violations continue in many others due to the lack of standardization and oversight of detention facilities. Between October 2003 and January 2010, a shocking 107 detainees died in immigration detention, many due to documented substandard care or severe neglect of their medical conditions.

Alternatives to Detention

Programs that offer alternatives to detention have proven successful both in ensuring that asylum seekers appear for immigration hearings, and in avoiding incarceration of innocent individuals. In the late 1990’s the Vera Institute of Justice created a pilot program called the Appearance Assistance Program (AAP). Immigrants selected by the government were diverted from detention, received help with establishing community ties and finding “sponsors,” and were required to meet regularly with program staff about their rights and duties in the legal process. Ninety three percent of formerly detained asylum seekers in AAP appeared for all of their hearings, compared to 78% of a control group who received no special services. Detention is justified only when an individual is determined through individualized review to pose a danger to the community. Otherwise, asylum seekers should be released into effective alternative community supervision plans.